TWAHER ABDULKARIM MOHAMED VS MWATHETHE ADAMSON KADENGE AND HAMISI HALFANI TSUMO

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

ELECTION PETITION APPEAL NO. 1 OF 2014

TWAHER ABDULKARIM MOHAMED…………………………………..…...…APPELLANT

VERSUS

MWATHETHE ADAMSON KADENGE ……………………………………1^st RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION (IEBC) ……………………..………………2^nd RESPONDENT

HAMISI HALFANI TSUMO…………………….……………………………3^rd RESPONDENT

RULING

1. Before this Court for determination is An Application dated 14.11.23 seeking:
2. Spent.
3. Spent.
4. This Honourable Court do lift the warrants of arrest against the Appellant Twaher Abdulkarim Mohamed.
5. This Honourable Court do review the order of the Taxing Officer awarding the 1^st Respondent Costs herein. 
6. Costs of this application be awarded to the applicant.

1. The grounds upon which the Application is premised are that the taxing officer taxed costs and delivered a ruling; that the Appellant filed an objection to the taxation under Rule 11 of the Advocates Remuneration Order (ARO); that the taxing officer failed to give reasons for her taxation as required by law; that instead, the taxing officer issued a warrant against the Appellant before discharging her duty under the law. The appellant urged that it is in the interest of justice that the orders sought are granted.

1. The Application is opposed by the 1^st Respondent vide his replying affidavit sworn on 26.2.24. He averred that Appellant’s advocates were served with the bill of costs dated 17.8.17, but failed to appear and defend the same; that the said bill of costs was taxed at Kshs. 3,526,503.30; that the Appellant filed an objection albeit late; that the same does not set out sufficient grounds for setting aside the taxing officer’s decision; that the Appellant was given notice of taxation; that his refusal to settle the same necessitated the filing of the notice to show cause which was served upon him; that the Appellant has never approached the 1^st Respondent or his advocates to settle the costs; that the reference herein is irregular,an afterthought and meant to frustrate recovery of the advocates fees awarded.
2. In his submissions date 2.4.24, the Appellant asserted that he raised objections in respect of items (1) and (3) of the Party and Party Bill of Costs that was taxed. His contention is that the taxing officer failed to record the reasons for the decision or forward the same to the Appellant, thereby denying him an opportunity to file an application before the Judge setting out grounds for his objection. He thus argued that the warrants of arrest issued against him are premature and illegal and should be set aside to pave way for review of the order in question. Further that this Court had capped the costs at Kshs. 500,000/= as against the Appellant which rendered the ruling of the taxing officer at a higher amount illegal and unenforceable. 
3. The 1^st Respondent filed submissions dated 11.4.24. He contended that the Appellant failed to comply with the directions of this Court of 12.2.24 issued in this cause and EP No. 3 of 2018 involving the same parties to deposit the amount in question by 29.2.24 and the stay granted lapsed. Relying on the cases of Ronald Wanje Jembe v Phoebiana Rehema Kalebga & another [2022] eKLR and Trusted Society of Human Rights Alliance v Cabinet Secretary for devolution and Planning & 2 others [2017] eKLR, it was submitted that the Application is for dismissal in limine for non-compliance with the orders of 12.2.24.
4. The 1^st Respondent further submitted there is evidence on record to show service of the bill of costs and numerous taxation notices and notice to show cause. Further that the taxing officer’s decision was rendered on 26.5.23. The 1^st Respondent argued that the lodging of the objection on 7.6.23 and the filing of the instant Application on 16.11.23 was contrary to the provisions of Rule 11 of the ARO. Further that there is no application for extension of time or explanation for the delay. Further that the Appellant has not provided the Court with a typed and certified copy of the taxing officer’s decision to enable the same to be assessed. The 1^st Respondent urged that the Application be dismissed with costs.
5. I have considered the Application, rival affidavits and submissions.
6. The Court notes that the issue of capping of costs was not raised in the Application nor did the Appellant allude to the same in his supporting affidavit. This is thus a new issue raised in submissions. Similarly, the issue of the Appellant’s failure to comply with the directions of 12.2.24 was not raised in the 1^st Respondent’s replying affidavit. 

1. It is trite that parties are bound by their pleadings and that new issues cannot be raised in submissions as the parties herein seek to do. The issues so raised, are best ignored. In this regard, the Court associates with the sentiments expressed by Korir, J. (as he then was) in the case of Republic v Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting and Training Limited & another [2014] eKLR where he stated:

The Applicant, the respondents and the Interested Party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of affidavits to support the submissions. New issues raised by way of submissions are best ignored.

1. Paragraph 11 of the ARO makes provision for the objection to decision on taxation as follows:
2. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
3. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
4. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
5. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
6. The law stipulates that an objection to the decision of the taxing officer must be in writing and must be done within 14 days of the decision. Such objection must also indicate the items of taxation that are objected to. The taxing officer is then required to record and forward to the objector, the reasons for his decision on the items in question. Thereafter, the objector may within 14 days apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. Paragraph 11(4) empowers this Court to enlarge the time for filing an objection or reference.
7. It is noted that the Appellant has not indicated when the decision of the taxing officer was made and when he filed the objection. Indeed, in his Application, he did not find it fit to annex any documents that he referred to, not the decree the stay of which he seeks, nor the warrants of arrest he wishes to be lifted. He has also not supplied the Court with the objection to the taxation he says he filed. The Respondent has however supplied the Court with the said documents.
8. The impugned ruling on taxation was delivered on 26.5.23. The Appellant filed the objection on 6.6.23. This was well within the period of 14 days stipulated under Paragraph 11 of the ARO.  I have scoured the record and I do not see any reasons given by the taxing officer.
9. What course of action was available to the Appellant, given the failure by the taxing officer to furnish him with reasons of the decision in respect of the 2 items objected to? Should he have proceeded to file a reference? The answer in the affirmative. The Appellant ought to have filed a reference notwithstanding failure by the taxing officer to furnish him with the reasons for her decision on the items in question. 
10. In this regard, I associate with the following sentiments expressed Odunga, J (as he then was) in the case of Muriu Mungai & Co. Advocates v New Kenya Co-Operative Creameries [2012] eKLR:

However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference. Otherwise mere adherence to the procedure may lead to absurd results if the advocate was to continue waiting for reasons, as it happened in the case of Kerandi Manduku & Company vs. Gathecha Holdings Limited Nairobi (Milimani) HCMA No. 202 of 2005, where the taxing officer had left the judiciary. Where reasons are contained in the decision, I share the view that to file the reference more than 14 days after the delivery of the same would render the reference incompetent. Similarly in this case, it has been stated from the bar the Taxing Officer had been transferred and was not in a position to furnish the reasons. Hence another Taxing Officer directed that the reasons be deemed contained in the ruling. That direction is, in my view, proper where the reasons are actually contained therein. However, it must always be borne in mind that taxation is an exercise of discretion and where the reasons are not patent on the face of the record, it is only the taxing master who can, properly speaking, explain in his reasons, the basis for the exercise of the discretion. The basis cannot be given by a different taxing master.

1. My finding is further fortified by the holding in Kipkorir,Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR where the Court of Appeal stated:

It is true that the taxing officer did not record the reasons for the decision on the items objected to after receipt of the respondent’s notice. It seems that the taxing officer decided to rely on the reasons in the ruling on taxation dated 23rd February, 2004. That ruling at least indicated the formula that the taxing officer applied to assess the instructions fees. Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless, satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing officer totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference.

1. Flowing from the cited decisions, it is evident that Paras 11(1) and (2) of the ARO come into play where no reasons appear on the face of the decision of the taxing officer. This is because such reasons would be required to enable the Judge before whom a reference is filed, to make an informed decision as to whether or not the taxing officer exercised his discretion on sound legal principles.
2. In the matter herein, the taxing officer gave reasons in the ruling, in respect of items 1 and 3 of the bill of costs to which the Appellant objected. Accordingly, to furnish further reasons would be superfluous. If the Appellant was dissatisfied with the reasons proffered in the ruling, he ought to have filed the reference and the Judge would have considered the insufficiency of the reasons and made a decision thereon. Indeed, the Court of Appeal stated in the cited decision that failure to give reasons would be a good ground for a reference and that the absence of such reasons would not in itself preclude the objector from filing a competent reference.
3. In light of the foregoing, I do find that the failure for the taxing officer to give reasons is not a ground for failure by the Appellant to file the reference to challenge the taxation.
4. What has emerged after considering the material placed before me is that after the Appellant filed the objection on 6.6.23, he appears to have gone into slumber and was only awoken by the notice to show cause and warrant of arrest. He is now seeking to do what he ought to have done earlier, namely, file a reference to challenge the taxation.
5. Notably, besides the prayer for lifting the warrant of arrest, the Appellant also seeks review of the order of the taxing officer awarding the 1^st Respondent costs. This is a curious prayer in that costs were awarded by the trial court and this Court on appeal. The role of the taxing officer is simply to tax the awarded costs. In the premises, the prayer sought cannot be granted.  
6. In the end and for the foregoing reasons, the Court finds that the Application dated 14.11.23 is without merit and the same is dismissed with costs to the 1^st Respondent.

DATED, SIGNED and DELIVERED in MALINDI this 8^th day of November 2024

___________________________

M. THANDE 

JUDGE